Articles Posted in Employment Discrimination

computerAnti-discrimination laws in New Jersey, at the federal level, and in other states around the country prohibit discrimination in employment based on numerous factors, including sex. These prohibitions on sex discrimination include sexual harassment. The past few months have seen a possibly unprecedented series of allegations and revelations about sexual harassment in the entertainment industry and in Washington, D.C. Even before that, however, people involved in technology startups in California and elsewhere were coming forward with allegations of sex discrimination and sexual harassment. Many of these involved female entrepreneurs and male investors. These cases often present a legal quandary for people claiming sexual harassment, since the types of employer-employee relationships covered by anti-discrimination statutes are not always present in the entrepreneurship model. New Jersey is also home to many startup businesses, making this an important issue for New Jersey sexual harassment claimants as well.

The New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 prohibit sexual harassment as a form of sex discrimination. Sexual harassment consists of a range of unwelcome behaviors of a sexual nature, including remarks, jokes, overtures or advances, direct requests for sexual contact, and unwanted touching or assault. This type of conduct constitutes unlawful sex discrimination when an employer makes sexual activity a condition of employment, or when the offensive conduct creates a hostile working environment for an employee. Employers are often held vicariously liable for sexual harassment by a supervisor, manager, executive, or director against someone who works in a subordinate position. If the alleged harasser is a co-worker, the employer may be liable if they are aware of the harassment but fail to take reasonable measures to address it.

Startup companies are, broadly speaking, businesses in the very early stages of development that offer some sort of novel product or service. No distinct definition of “startup” exists, but perhaps a key feature of a startup is that its operating expenses exceed its income—if any income exists—and its business model is at least partly unproven. Many startups therefore rely on investors to fund initial development and growth. Venture capitalists (VCs) are in the business of investing in startups, providing money for the company and, often, mentoring for the entrepreneurs. Many of the recent allegations of sex discrimination and sexual harassment originate in interactions between entrepreneurs and VCs.

cannabisIn 2009, the New Jersey Legislature authorized the possession and use of small amounts of marijuana for medical purposes with a doctor’s prescription. Federal law, however, still classifies marijuana as a controlled substance with no recognized medical use. This has led to considerable uncertainty in the area of employment law, such as whether states that allow medical marijuana use also protect workers against discrimination based on drug use that, while legal under state law, still violates federal law. So far, no New Jersey court has found that state antidiscrimination law covers lawful medical marijuana use, but at least one such claim is currently pending in state court. The defendant in that lawsuit is arguing that the federal Controlled Substances Act (CSA) preempts any state laws addressing employment discrimination claims. A federal court in Connecticut recently rejected a similar argument in Noffsinger v. SSC Niantic Operation Company, No. 3:16-cv-01938, ruling (D. Conn., Aug. 8, 2017). While this ruling does not directly affect New Jersey courts, it could have an impact on future cases.

The New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), N.J. Rev. Stat. § 24:6I-1 et seq., establishes procedures for medical professionals to prescribe marijuana. It also exempts qualifying medical professionals and their patients from liability under the state’s criminal and civil laws dealing with marijuana. Id. at §§ 2C:35-18, 24:6I-6. It does not specifically mention employment. A pair of bills introduced in the New Jersey Legislature, A2482 and S2161, would add specific employment protections for medical marijuana patients, but they have never received hearings.

Under the Supremacy Clause of the U.S. Constitution, federal law generally takes precedence over conflicting state laws. The CSA’s classification of marijuana as a Schedule I controlled substance, 21 U.S.C. § 812(c)(I)(c)(10), has caused much confusion in this regard. Preemption by federal law is a major part of the defendant’s argument in a lawsuit filed by a medical marijuana patient alleging violations of the New Jersey Law Against Discrimination (NJLAD). Wild v. Carriage Services, No. L-000687-17, complaint (N.J. Super. Ct., Bergen Cty., Jan. 30, 2017). In a motion to dismiss filed in February 2017, the defendant in Wild argues that the NJCUMMA directly conflicts with the CSA. Courts have dismissed several similar lawsuits recently on procedural grounds that do not address the merits of the medical marijuana claims. See Barrett v. Robert Half Corp., No. 2:15-cv-06245, order (D.N.J., Feb. 21, 2017); Wiltshire v. Breunig, et al, No. L-000052-16, complaint (N.J. Super. Ct., Cape May Cty., Feb. 5, 2016).

volunteersNew Jersey employment laws protect workers’ rights in multiple areas, including wages and hours of work, discrimination and harassment, and retaliation for reporting suspected wrongdoing by an employer. Many of these laws apply specifically to “employees,” but no single definition of “employee” exists. Some statutes only cover paid employees, while others also apply to independent contractors, unpaid interns, or volunteers. The legal status of unpaid workers, including both interns and volunteers, has been the subject of multiple court battles. The New Jersey Appellate Division recently held that the state’s whistleblower statute, the Conscientious Employee Protection Act (CEPA), does not apply to unpaid volunteers. Sauter v. Colts Neck Volunteer Fire Co. No. 2, No. A-0354-15T1, slip op. (N.J. App., Sep. 13, 2017). In light of this decision, it is worth reviewing how various employment statutes in New Jersey view unpaid volunteers and interns.

“Volunteer” Versus “Intern”

Some laws make a distinction between volunteers and interns. Generally speaking, an internship provides some form of educational benefit to the worker, possibly including course credit at an educational institution, and it may be paid or unpaid. Even when an internship is unpaid, the worker is considered to gain an educational benefit. A volunteer position, on the other hand, is usually undertaken for primarily altruistic reasons, or at least without the expectation of any specific return.

protestersFederal and state anti-discrimination laws protect workers against discriminatory employment practices based on numerous factors. The New Jersey Law Against Discrimination (NJLAD) identifies more protected categories than the equivalent federal statute, Title VII of the Civil Rights Act of 1964. Several recent news stories have involved employers who terminated workers because of political views that they expressed. In one case, an employee of a tech company lost his job after posting a memorandum criticizing the company’s gender diversity efforts on a company message board. In August 2017, several companies fired employees for participating in a rally in Virginia that prominently displayed symbols associated with explicitly racist organizations. People have also had their employment threatened or terminated for views and activities on the opposite side of the political spectrum. This raises questions about how, or whether, anti-discrimination laws protect workers against adverse actions by their employers because of their political views.

The terms “political views” and “political speech” have no distinct definitions for legal purposes. They broadly refer to individuals’ opinions on matters of public concern, as well as statements they make and activities in which they participate that involve those matters. “Speech” can include more than just spoken statements in this context, such as written statements and participation in advocacy.

The First Amendment to the U.S. Constitution prohibits the government from punishing people based on the content of their speech, or saying things the government does not like. Private employers are not bound by this restriction. Public employees might be able to assert free-speech claims, but private employees cannot. The National Labor Relations Act (NLRA) prohibits private employers from taking adverse action against employees for speech or advocacy related to labor organizing. Whistleblower protection laws, like the Conscientious Employee Protection Act (CEPA), protect employees who speak out about legal violations by their employers.

train whistleEmployees of private companies owe a duty of loyalty to their employers, meaning that they may not act in a way that directly damages or conflicts with an employer’s interests. Employers are often within their rights to terminate an employee who breaches this duty. At the same time, however, employees are in a unique position to bring legal violations by their employers to light. Employees who report wrongdoing by their employers are commonly known as “whistleblowers,” and laws at the state and federal levels offer them protection against retaliation, including termination. A New Jersey employment lawsuit, which was recently removed from an Essex County court to a federal court, involves discrimination and retaliation claims by a former executive. Chandler v. Honeywell Int’l, No. L-004230-17, complaint (N.J. Super. Ct., Essex Cty., Jun. 9, 2017), removed to No. 2:17-cv-06173, notice of removal (D.N.J., Aug. 16, 2017). The plaintiff alleges that the defendant hired her to address discrimination problems but actually only intended to use her “as a false shield to deflect…inquiry by third parties.” Id., complaint at 5.

The New Jersey Conscientious Employee Protection Act (CEPA), N.J. Rev. Stat. § 34:19-1 et seq., protects whistleblowers from retaliation and other adverse employment actions if they report legal violations by their employers. If an employee “reasonably believes” that an action or policy of their employer violates the law, or is otherwise fraudulent or criminal, CEPA prohibits retaliation against the employee for reporting the matter to a supervisor or government official. Id. at § 34:19-3(a). The statute also protects employees who testify or otherwise cooperate in an investigation of alleged wrongdoing by the employer, as well as employees who refuse to participate in acts that they reasonably believe to be illegal or fraudulent. Retaliation against employees for reporting suspected legal violations is also prohibited by the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-12; the Civil Rights Act of 1991, 42 U.S.C. § 1981; and other statutes.

The plaintiff in Chandler began working for the defendant in July 2015 as the “Vice President, Organizational Development and Learning” in the company’s “Performance Material and Technologies business.” Chandler, complaint at 2. She alleges that the defendant consistently told her that it had hired her because of “a sincere desire to remedy” a pattern of “non diverse appointment of managers to its executive ranks.” Id. at 2-3. Once she began working for the defendant, however, she alleges that the company interfered with her efforts to do her job, including by questioning her qualifications and character. The defendant terminated her employment in December 2016, according to her complaint.

flick offState and federal laws protect workers from termination based on a protected category like race or sex, known as discriminatory termination; or because of participation in protected activities like reporting legal violations, known as retaliatory discharge. A claimant must make a prima facie case of a discriminatory or retaliatory purpose in order to get past a summary judgment motion. A federal court in New Jersey recently ruled in a plaintiff’s favor on claims of discriminatory discharge under state law and retaliatory discharge under federal and New Jersey wrongful termination laws. Ferren v. Foulke Mgt. Corp., No. 1:15-cv-03721, opinion (D.N.J., Feb. 16, 2017).

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination by employers on the basis of multiple categories, including disability. N.J. Rev. Stat. § 10:5-12(a). Unlawful discrimination includes discharging an employee solely or primarily because of a disability. It also prohibits retaliating against an employee because of a protected activity. The federal Family Medical Leave Act (FMLA) guarantees that qualifying employees of covered employers may take unpaid leave for certain purposes, and it prohibits employers from retaliating against employees for taking authorized leave or reporting violations of the statute. 29 U.S.C. § 2615.

The plaintiff in Ferren began working for the defendant in 2001 as a lot attendant at a car dealership. His job duties included lot maintenance and customer service. He took medical leave in October 2014 for a shoulder injury, according to the court, after informing his supervisor that he would be having surgery and was invoking his rights under the FMLA. The plaintiff was scheduled to return to work in January 2015. He reportedly provided a doctor’s note to the supervisor in December 2014, which stated that the plaintiff should not lift more than five pounds and should refrain from certain other activities. The supervisor allegedly told the plaintiff to “go home and get better.” Ferren, op. at 3. On the plaintiff’s scheduled return date, he was laid off.

Musical notesFederal law prohibits discrimination by employers on the basis of numerous factors. Common examples of unlawful discrimination include refusal to hire, termination, or harassment in the workplace because of a claimant’s race, sex, religion, etc. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey employment discrimination claims under federal law, recently ruled on the question of how much harassment a plaintiff must allege to maintain a claim for workplace harassment based on race. The defendant argued that a plaintiff must allege an ongoing pattern or multiple instances of harassment. The court, citing the plain language of precedent decisions, held that a single incident of race-based harassment can be sufficient to sustain a claim. Castleberry v. STI Group, No. 16-3131, slip op. (3rd Cir., Jul. 14, 2017).

Title VII of the Civil Rights Act of 1964 is probably the most well-known federal statute dealing with race discrimination in employment, but it is not the only one. The plaintiffs in Castleberry brought their claims under 42 U.S.C. § 1981 rather than Title VII. This statute addresses equal rights “to make and enforce contracts” and engage in certain other activities. It was originally enacted as part of the Civil Rights Act of 1866, and Congress amended it in the Civil Rights Act of 1991. This law added subsection (b), which clarifies that the contractual rights it protects include employment claims like wrongful termination.

The Castleberry lawsuit alleges workplace harassment on the basis of race in the form of a hostile work environment. The Third Circuit has defined a five-part test for establishing a hostile work environment based on race:  the plaintiff experienced (1) intentional discrimination based on race (2) that was “severe or pervasive,” (3) that “detrimentally affected the plaintiff,” (4) that would have a comparable effect on “a reasonable person” in a similar situation, and (5) that occurred in a situation in which respondeat superior liability would apply. Castleberry, slip op. at 5, quoting Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). The Third Circuit’s analysis in Castleberry focused on the “severe or pervasive” element.

Disability SymbolsNew Jersey employees are protected against discrimination under federal and state laws, as well as municipal anti-discrimination ordinances in many cities around the state. The New Jersey Law Against Discrimination (NJLAD) covers a broad range of protected categories, including disability. In addition to prohibiting discrimination based on an employee’s disability, the law also requires employers to provide reasonable accommodations for employees with disabilities. A jury recently found in favor of a former corrections officer in a New Jersey disability discrimination lawsuit, awarding her about $11.8 million in damages. Pritchett v. State of New Jersey, No. L-002189-13, complaint (N.J. Super. Ct., Mercer Cty., Oct. 10, 2013).

Under the NJLAD, an employer cannot discriminate against a worker “because such person is or has been at any time disabled.” N.J. Rev. Stat. §§ 10:5-4.1, 10:5-12. This applies to people with disabilities and people who are “perceived as having a disability.” Victor v. State, 4 A.3d 126, 142 (N.J. 2010). The NJLAD’s definition of a “disability” is also “significantly broader” than that of the federal Americans with Disabilities Act. Id. at 142 n. 11. Exceptions apply when a particular person’s particular disability “would prevent such person from performing a particular job.” N.J. Rev. Stat. § 10:5-29.1; Raspa v. Office of Sheriff, 924 A.2d 435, 442-43 (N.J. 2007).

The NJLAD also requires employers to make reasonable accommodations for employees with disabilities, provided this does not “impose an undue hardship on the operation of its business.” N.J.A.C. 13:13-2.5(b). Reasonable accommodations might include modifications of facilities and equipment for accessibility, flexible or modified work schedules, or reassignment of certain job duties. Factors employers may consider when determining whether something constitutes an undue burden include the nature of their business, the size of their operation and facilities, and the potential cost of the accommodations.

cannabisMore than half of the states in the U.S., including New Jersey, allow the use of marijuana for certain medical purposes with a doctor’s prescription, but it remains a strictly controlled substance under federal law. This has raised questions about the rights of an employee who uses marijuana in accordance with a doctor’s instructions. Does an employer violate anti-discrimination laws if they terminate or otherwise discriminate against an employee solely because of a lawful medical marijuana prescription? New Jersey’s employment laws still offer little protection, but proposed legislation and court decisions in nearby states suggest that the legal landscape is changing.

The New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), N.J. Rev. Stat. § 24:6I-1 et seq., became law in 2010. It defines an exception to the New Jersey criminal statutes dealing with the possession and use of marijuana. It is largely silent on the question of employment. New Jersey employers can cite several justifications for terminating employees who are known to use marijuana, even if only for medical purposes. Marijuana is still illegal under federal law, for example, and some employers may be obligated by federal laws or federal regulations to monitor employees’ drug use.

Most regulations requiring employers to drug-test their employees are based on safety concerns, along with an assumption that anyone using marijuana is abusing it. A worker who shows up to work high, endangering themselves and others, is not the same as a responsible medical marijuana patient. The law has not yet caught up to this distinction. A pair of bills pending in the New Jersey Legislature, A2482 and S2161, would amend the NJCUMMA to make it “unlawful to take any adverse employment action against an employee” with a valid medical marijuana prescription, unless the employer can show “by a preponderance of the evidence that the lawful use of medical marijuana has impaired the employee’s ability to perform [their] job responsibilities.”

Grand CanyonThe wage gap between men and women has received considerable media attention recently, and new legislation is attempting to improve conditions. Federal law prohibits disparate pay based on gender, but it leaves several loopholes. A new law in New York City is intended to close one of these loopholes by prohibiting employers from asking job applicants for salary history or from using salary history to determine a new employee’s compensation. This practice often perpetuates the wage gap without specifically violating equal pay laws, since female employees’ salary histories are often likely to reflect lower rates of pay than male colleagues. Several jurisdictions around the country have enacted similar laws. New York City’s law will take effect on October 31, 2017.

The federal Equal Pay Act (EPA) of 1963 prohibits employers from paying employees of different sexes at different rates “for equal work” in jobs that require “equal skill, effort, and responsibility…under similar working conditions.” 29 U.S.C. § 206(d)(1). It makes exceptions, however, for wages that are determined based on seniority, merit, “quantity or quality of production,” or “a differential based on any other factor other than sex.” Id. This last exception arguably applies to decisions based on salary history, since the applicant’s gender is not a direct factor in the employer’s calculations. A federal appellate court reached this conclusion recently in Rizo v. Yovino, No. 16-15372, slip op. (9th Cir., Apr. 27, 2017).

New York state law resembled the EPA until 2015, when the legislature passed a bill limiting the “factor other than sex” exception. Under the amended statute, the “factor” cannot be “based upon or derived from a sex-based differential in compensation,” and it must “be job-related…and…consistent with business necessity.” N.Y. Lab. L. § 194(1)(d). Furthermore, a complainant can challenge any “employment practice that causes a disparate impact on the basis of sex.” Id. The New Jersey Legislature passed a bill in 2016 that would have made similar amendments to equal pay provisions, found in N.J. Rev. Stat. § 10:5-12. The governor conditionally vetoed the bill, and the legislature failed to override the veto.

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